NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Wal-Mart Stores, Inc. and United Food and Commercial Workers Union, Local Union 99R, CLC and United Food and Commercial Workers International
June 30, 2008
DECISION AND ORDER2
By Chairman Schaumber and Member Liebman
At issue in this proceeding is whether the Respondent’s
conduct in response to a union organizing drive among the Tire and Lube Express
(TLE) employees at its Kingman, Arizona facility violated Section 8(a)(1) and
8(a)(3) of the Act. We find, in
agreement with the judge,3 that the
Respondent granted a benefit to employees, in violation of Section 8(a)(1), by
repairing the cooling system in the TLE in order to induce employees to refrain
from supporting the
As explained below, we also affirm the judge’s finding that the Respondent unlawfully threatened to freeze discretionary merit wage increases during initial bargaining if the employees voted for union representation.6
However, for the reasons set forth below, we reverse the judge’s finding that the Respondent unlawfully surveilled employees and created an impression of surveillance when it assigned Regional Personnel Manager Tom Scott to be the interim TLE manager.7
Background
During the summer of 2000, the TLE employees contacted
United Food and Commercial Workers, Local Union 99R.8 The
Threat to Postpone Merit Wage Increases
Soon after its arrival at the Kingman facility, the Respondent’s labor relations team had a “question box” installed outside the breakroom for employees to deposit any questions they had about the effects of union representation. The labor team checked the box daily and posted questions and answers for the employees to see. In response to the question (submitted while the representation petition was pending) “What happens to raises in the TLE while they’re waiting on a contract?”, the Respondent on October 14 posted the following response:
Wal-Mart would not be allowed to give any discretionary raises, such as merit increases, while negotiations continued. In general, no provision of a collective-bargaining agreement is put in place until the parties agree on every part of the agreement.
The judge found that the Respondent had a past practice of granting merit increases that were discretionary in amount. As such, he found that these increases were an “existing benefit” which could not lawfully be discontinued unilaterally while the petition for an election was pending. Accordingly, the judge found that the Respondent violated Section 8(a)(1) by stating in its October 14 response that employee merit increases would be discontinued.
Although we agree with the judge’s 8(a)(1) finding, we do not agree with the legal standard on which he relied. The judge relied on precedent setting forth the obligations of an employer to maintain the status quo as to wages and benefits during a union organizing drive. As we explained in Sam’s Club, 349 NLRB No. 94, slip op. at 6 (2007), “an employer faced with a union organizing drive is required to proceed with an expected wage or benefit adjustment as if the union were not on the scene.”
Here, however, the question posed by the employees focused
on the postcertification period, and asked what would happen to employee merit
increases “while they’re waiting on a contract” to be negotiated. The legal standard applicable to wage
increases in this context, as set forth in NLRB
v. Katz, 369 U.S. 736 (1962), and Daily
News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73 F.3d 406 (D.C. Cir.
1996), cert. denied 519
[F]ollowing its employees’ selection of an exclusive bargaining representative, an employer may not unilaterally discontinue a practice of granting periodic wage increases. . . .
Hence, an employer’s statement that wages will be frozen until a collective-bargaining agreement is signed violates Section 8(a)(1) of the Act if the employer has a past practice of granting periodic wage increases. Such an announcement suggests to employees that the employer intends to unilaterally take away benefits and require the union to negotiate to get them back. (citations omitted)10
The Respondent’s answer to the question submitted by its
employees clearly violated its obligations under Katz and Daily News. As in Jensen
Enterprises, it told employees that it would not grant them merit increases
during negotiations for a collective-bargaining agreement. Accordingly, we affirm the judge’s finding
that the Respondent’s answer constituted a threat to withhold an established
benefit and violated Section 8(a)(1).
Alleged Surveillance and Creation of the Impression of Surveillance in the TLE
Regional Personnel Manager Tim Scott, who arrived with the labor relations team, was assigned by Dodson to act as interim manager of the TLE for the first 9 days he was at the store, even though he had no TLE or automotive experience. The General Counsel alleged, and the judge found, that while assigned to the TLE, Scott engaged in surveillance of the employees’ union activities and created an impression of surveillance. The Respondent has excepted to these findings, and we find merit in the exceptions.
At the time the petition was filed, TLE Manager Larry
Eidson was on an extended medical leave.11 While
During his managerial tenure in TLE, Scott worked from opening until closing and spent most of his time on the floor assisting employees and engaging them in conversations about TLE operations. On September 7, Scott assumed other duties at the store and Ragnar Guenther, the new district TLE manager, succeeded him as the interim manager until Eidson’s return.
The judge found that Scott’s presence “must have had a significant impression on the automotive service technicians.” He observed that Scott was a high-ranking manager and a member of the labor relations team that had been dispatched by headquarters immediately after the petition was filed, and that the team’s acknowledged job was to gather information about what employees wanted and their union sympathies. The judge reasoned that the employees were aware that Scott had no experience in TLE work and was not qualified for the manager’s job, and found that employees reasonably would have assumed that he was assigned to the TLE primarily to observe whether they were engaged in union activity. Accordingly, the judge concluded that the Respondent violated Section 8(a)(1) by giving employees the impression of surveillance. In view of the labor relations team’s stated purpose, the judge also found that the Respondent engaged in actual surveillance of the TLE employees’ union activity in violation of 8(a)(1). For the reasons discussed below, we disagree.
The record establishes that when Scott and Dodson arrived at the Kingman store, they found the store in disarray and the TLE without a manager. As the Respondent points out, although Scott was inexperienced, so was his predecessor Vergara. Thus, the Respondent’s appointment of an interim manager without TLE experience was not unprecedented. Moreover, there is no evidence that any more qualified individual was readily available to manage the TLE. On this record, then, it appears that Dodson simply assigned Scott to work as a manager where a manager was needed, and then only for a brief period until an interim manager with automotive experience arrived. Scott spent 9 days heading up the TLE operation in an unremarkable fashion, working from opening to closing, side by side with the automotive employees until Guenther succeeded him.12
The Board has long held that management officials’ observation of public union activity, particularly where such activity occurs on company premises, does not violate Section 8(a)(1) of the Act, unless officials do something out of the ordinary. See, e.g., Sprain Brook Manor Nursing Home, 351 NLRB No. 75, slip op. at 2 (2007) (manager who never worked on Saturdays and who stood in doorway of building for 3 hours on a Saturday watching a union organizer distribute literature to employees engaged in unlawful surveillance). Here, however, there is no evidence that Scott engaged in extraordinary conduct that would indicate that the employees’ exercise of Section 7 rights was under surveillance. To the contrary, the record indicates that he simply worked in the TLE alongside the other employees as a normal manager.
As the judge stated, the test for determining whether an employer has created an impression of surveillance is whether the employees would reasonably assume from the employer’s actions or statements that their union activities had been placed under surveillance. See, e.g., Waste Stream Management, 315 NLRB 1099, 1124 (1994). In the present circumstances, it is more likely that the employees would view Scott’s presence as a stopgap assignment to their department of a sorely needed manager13 rather than as an effort to surveill their union activity. Accordingly, in the absence of additional evidence, we find that the General Counsel has not established that the Respondent engaged in surveillance or created an impression of surveillance.
ORDER
The Respondent, Wal-Mart Stores, Inc.,
1. Cease and desist from
(a) Granting benefits and improved working conditions to discourage employees from supporting the Local Union.
(b) Threatening its employees with a loss of merit wage increases for supporting the Local Union.
(c) Discriminatorily and disparately applying and enforcing its no-harassment policies to the detriment of employees who supported the Local Union.
(d) Discharging, denying COBRA coverage to, or otherwise discriminating against any of its employees for supporting the Local Union or any other union.
(e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Apply and enforce its no-harassment policies in a fair and impartial manner so as not to discriminate to the detriment of supporters of the Local Union.
(b) Within 14 days from the date of this Order, offer Brad Jones full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Make Brad Jones whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, including any out of pocket medical costs incurred because of his denial of COBRA coverage, in the manner set forth in the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Brad Jones, and within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in
(g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter C. Schaumber, Chairman
Wilma
B. Liebman,
Member
(seal) National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not discharge or otherwise discriminate against any of you for supporting the United Food and Commercial Workers Union, Local Union 99R, CLC (the Local Union), or any other union.
We will not deny you COBRA medical insurance coverage for supporting the Local Union or any other union.
We will not apply and enforce our no-harassment policies in a disparate and discriminatory manner to the harm and disadvantage of those of you who support the Local Union or any other union.
We will not grant benefits or improvements in working conditions to you in an effort to discourage you from supporting the Local Union or any other union.
We will not threaten you with a loss of your merit wage increases if you select the Local Union or any other union as your collective-bargaining representative.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by Section 7 of the National Labor Relations Act.
We will within 14 days from the date of the Board’s Order, offer Brad Jones full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
We will make Brad Jones whole for any loss of earnings and other benefits resulting from his discriminatory discharge, less any net interim earnings, plus interest.
We will make Brad Jones whole, including interest, for any out of pocket medical costs incurred because of the discriminatory denial of COBRA medical insurance coverage.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Brad Jones, and we will, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way.
We will apply and enforce our no-harassment policies in a fair and impartial manner so as not to discriminate to the harm and disadvantage of the supporters of the Local Union or any other union.
Wal-Mart Stores, Inc.
Paul Irving, Esq., for the General Counsel.
Lisa
Pederson, of
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant
to notice, I heard this case in
All
parties appeared at the hearing, and I provided them with the full opportunity
to participate, to introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally and file briefs.
Based on the record, my consideration of the briefs filed by counsel for
the General Counsel, counsel for the Respondent, and counsel for the Local
Union and the International Union (collectively the Unions or the Charging Parties),
and my observation of the demeanor of the witnesses,[1] I
now make the following
Findings of Fact
i. jurisdiction
The
complaint alleges, the answer admits, and I find that the Respondent is a Delaware
corporation, with offices and places of business located throughout the United
States, including its Store 2051 in Kingman, Arizona (the Respondent’s facility),
where it is engaged in the operation of retail stores. Further, I find that during the 12-month
period ending October 24, 2000, the Respondent, in the course and conduct of
its business operations, purchased and received at its facility goods valued in
excess of $50,000 directly from points located outside the State of
Accordingly,
I conclude that the Respondent is now, and at all times material has been, an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
ii. labor
organizations
The
complaint alleges, the answer admits, and I find that at all times material,
the Local Union and the International Union have each been labor organizations
within the meaning of Section 2(5) of the Act.
iii. alleged unfair
labor practices
A.
The Dispute
The
General Counsel alleges that the Respondent’s supervisors and agents have
engaged in a campaign designed to defeat the Local Union’s organizing effort
among a unit of employees in the Kingman,
It
is alleged in the complaint that the Respondent’s supervisors and agents
repeatedly solicited employee grievances and complaints, and promised its
employees increased benefits and improved terms and conditions of employment,
and that it would remedy employees’ grievances if they refrained from union
organizational activity. Further, it is
charged that the Respondent granted certain specific benefits and improved
working conditions for the TLE employees and other employees in an effort to
get them to refrain from supporting the Local Union. These benefits allegedly included new
equipment, an improved cooling system, and the suspension of a computer
generated scheduling system for TLE employees, as well as, the removal of an
unpopular store manager.
The
complaint alleges that certain of the Respondent’s supervisors and agents
engaged in surveillance, or created the impression of surveillance, of employees’
union and other concerted activities.
Employees were allegedly informed that it would be futile for them to
select the Local Union as their bargaining representative, as the Respondent
need not negotiate. Also, it is charged
that employees were threatened with loss of raises, stakeholder bonuses, and
discount cards if they selected the Local Union as their bargaining representative.
It
is further alleged in the complaint that the Respondent disparately applied and
enforced it’s nonharassment policies to the detriment of employees who supported
the Local Union, and that it increased the work duties and tasks of employees
Brad Jones and Larry Adams because of their support for the Local Union. The Respondent is alleged to have discharged
Jones and denied him COBRA benefits because of his union and concerted
activities. Also, it is charged that
the Respondent denied the request of several employees to have coworkers
present during investigatory interviews, which interviews the employees had
reasonable cause to believe would result in disciplinary action. Additionally, these employees were allegedly
threatened with reprisals for refusing to waive their right to have a coworker
present.
Finally,
it is alleged that at all of its stores throughout the United States, the
Respondent has maintained in its Associate benefits book a provision which
indicates that union represented employees are not eligible for certain
benefits to which most other employees are entitled. This provision is allegedly intended to chill
employees’ Section 7 rights.
The
Respondent denies the commission of any unfair labor practices.[2] The Respondent argues that it has a corporate
philosophy based on an “open door” policy.
This policy strongly encourages employees throughout the Respondent’s
corporate structure to take their ideas, concerns, suggestions, and problems
directly to management. Employees are
told frequently, both orally and in writing, that they can go as high as they
want within the management structure, including even to the Employer’s chief executive
officer, in seeking guidance under the “open door” policy. In explaining its policy to employees, the
Respondent stresses that while an employee will always receive an answer to the
inquiry, there is no guarantee that it will be the answer the employee is looking
for. In any event, employees are told
that if dissatisfied with any answer, they are at liberty to take their inquiry
higher in the management structure. Allegedly,
supervisors at Wal-Mart stores routinely post the names and telephone numbers
of corporate management, which employees are encouraged to use when seeking
answers to their inquiries. Further,
they are repeatedly told that there are no reprisals for utilizing the “open
door” policy.
The
Respondent contends that it has created a corporate atmosphere that makes it
unlikely its employees will be interested in seeking union representation. It argues that because of the “open door”
policy, employees find they do not need third-party representation. According to Wal-Mart, it is not anti-union,
but rather “proassociate.”[3]
It
is the Respondent’s contention that the filing of the representation petition
at its Kingman, Arizona facility resulted not in its commission of unfair labor
practices, but instead in an opportunity for the Employer to remind its
employees of the benefits of the “open door” policy. The Respondent takes the position that the
actions of its local, regional, and corporate officials, following the filing
of the petition, were intended merely to explain to its employees why union
representation was not in their best interest, and constituted a totally lawful
expression of free speech. Further, it
is the Respondent’s position that the filing of the instant unfair labor
practice charges is simply a continuation of a national campaign that the
International Union has instituted in an effort to harm Wal-Mart.
The
Respondent alleges that any changes in the operation of its Kingman facility,
following the filing of the petition, were merely the result of the normal
operation and maintenance of the store.
It denies any attempt to unlawfully influence its employees’ interest in
supporting the Local Union. Any personnel
actions taken were allegedly for legitimate business reasons, and unrelated to
the union activity of the employees involved.
B.
Background Facts
The
Respondent is the nations largest retail establishment, with well over 3000
stores located throughout the country.
It is, of course, engaged in the business of the retail sale of consumer
products and food items to the general public.
Only one of its stores is directly involved in this dispute, namely
store 2051 in
On
August 28, 2000, the Local Union filed a petition with the Board in Case 28–RC–5889
to represent approximately 11 automotive service technicians employed at the
facility’s TLE. The Respondent took the
position that an appropriate bargaining unit should consist of a storewide unit
comprised of all its Kingman facility employees, approximately 260 individuals. Following a representation hearing, the
Regional Director for Region 28 issued a Decision and Direction of Election on
September 29, 2000, in which he found the appropriate unit to consist of all
the facility’s TLE employees. There were
approximately 30 employees in the unit found appropriate. (GC Exh. 20.)
Subsequently, an election was scheduled to be held on October 27,
2000, in the unit found appropriate. However,
to date no election has been held as the present unfair labor practice charges
served to block the election.
Following
the filing of the representation petition, a copy of the petition was received
by fax at the facility on August 28, 2000.
On August 30, 2 days later, a team of labor relations managers from the
Respondent’s headquarters in
The
Respondent does not deny the seriousness with which it takes union organizational
efforts at any of its stores. All of its
supervisors have computer access to a document entitled “A Managers Toolbox,”
which serves as a resource for managers in developing strategies for union
avoidance. While the document states
that the Respondent is “not antiunion” but, rather, “pro[a]ssociate,” it also
indicates that the managers are the “first line of defense against
unionization.” Managers are cautioned to be “alert for efforts by a union to
organize” and are directed to call the “union hotline” when they become aware
of union activity.[4] The document characterizes Wal-Mart as “strongly
opposed to third party representation.”
It stresses, “maintaining an environment of open communication through
the use of the Open Door Policy . . .” and states that this policy is the “greatest
barrier to union influences” that will try to change the Respondent’s “union
free status.” (GC Exh. 29.)
Vicky
Dodson headed the team of labor relations managers from
The
At
virtually every meeting held with groups of employees, the Respondent’s
managers stressed the “open door” policy.
In resolving the unfair labor practice allegations in the complaint, it
is essential to understand the Respondent’s reliance on the policy and the way
in which it was presented to the employees.
References to the open door policy in material made available to
employees can be accurately described as ubiquitous. Nationwide, the Respondent informs its
employees of the open door policy through its computer-posted corporate
policies known as the “pipeline” (GC Exh. 15) and in its employee handbook. (R..
Exh. 12.) The handbook describes the
open door policy as follows:
Our Open Door
Policy says that if you have an idea or a problem, you should go to your supervisor to talk about it without fear of
retaliation. Faster resolution may occur
when the associate
goes through the immediate supervisor first.
However, if the associate feels the supervisor is the source of the
problem, or if the problem has not been addressed satisfactorily, the associate
may go to any level of management in the Company. Remember, while the Open Door
promises that you will be heard, it cannot promise that your opinion will
always prevail. Any suppression of, or
retaliation for using the Open Door Policy by a supervisory associate may
result in disciplinary action, up to and including termination.
The
computer-posted policy is very similar, indicating to employees that the
purpose of the open door “is to bring your suggestions, observations, problems
or concerns regarding the company or yourself to the attention of any supervisor.”
Additionally,
the open door policy is customarily posted at various points in the Respondent’s
stores nationwide where employees would likely congregate. It was undisputed that at the Kingman
facility, the policy was posted in the training room, by the timeclock, in the
breakroom, and in the TLE stockroom. (R.
Exh. 8–11.)
I
am convinced that the open door policy is an integral part of the Respondent’s
corporate culture. It is also beyond
doubt that the policy is intended, at least in part, to discourage employees
from seeking union representation. The
policy affords the Respondent the opportunity to tell its employees that “third-party
representation” is not necessary, as they are allegedly able to bring their
concerns directly to management. While
it is axiomatic that the Respondent may engage in union avoidance by expressing
its negative views about unions to its employees, such expression must be
without threat of reprisal, or force, or promise of benefit. (Sec. 8(c) of the Act.)
The
central issue in this case is whether the Respondent’s supervisors and agents
crossed the line between free speech, and expressions or actions that would
constitute violations of the Act. In the
remainder of this decision, I will discuss the Respondent’s conduct in connection
with the union campaign and the union activity of certain of its employees.
C.
Argument and Analysi
1. Promises to remedy grievances, and improve benefits
and terms and conditions of employment
Complaint
paragraph 5(b) alleges that the facility store manager, Mike Buckner, on August
30, 2000,[5] at a
meeting with the TLE employees, promised improved benefits and terms and conditions
of employment, as well as a remedy of employees’ grievances, if they refrained
from union organizational activity. This
was the first meeting for employees held following the receipt of the
representation petition. The
According
to Buckner, he was given the “talking points” by Dodson, which he practiced
delivering, and ultimately read to the assembled TLE employees. He denied making any other substantive
comments at this meeting. A review of
the “talking points” establishes that they were introductory remarks intended
to inform the TLE employees of the filing of the representation petition, to
introduce the members of the
Vicky
Dodson was a principal character in the events surrounding the union organizational
campaign. She was in charge of the
Respondent’s onsite efforts to maintain the facility as a union-free
store. It is, therefore, appropriate at
the outset of this decision for me to make certain comments regarding her
background and my impression of her credibility. At the time of her testimony, Dodson had been
employed by Wal-Mart for 13 years and was classified as a director of labor relations. Previously, she had held positions with the
Respondent as a senior labor manager and labor relations manager. Her testimony indicated extensive training as
a labor relations professional, and the Respondent’s confidence in her
abilities was demonstrated by placing her in charge of its onsite
campaign. Dodson testified for a lengthy
period. Following her testimony, I am of
the view that she is a well versed labor relations manager, who has a
reasonably good understanding of how to conduct an election campaign on behalf
of her Employer, without committing obvious unfair labor practices. Further, she impressed me with her sincerity,
and no-nonsense attitude about her job.
She is an intelligent individual with a good recall of events, and
testified in detail without embellishment or exaggeration. I was impressed with her demeanor under both
direct and cross-examination, and I found her to be a generally credible
witness.
I
credit the testimony of Dodson that on August 30, Buckner read the talking
points verbatim. Further, I accept her
testimony that Buckner did not ask TLE employees to tell him their problems, or
that he would take care of their problems, or any words to that effect. Scott and Buckner support her testimony. Accordingly, I conclude that the General
Counsel has failed to establish that Buckner made any unlawful promises to the
TLE employees to remedy grievances or improve benefits and terms and conditions
of employment.
However,
I believe that it is still necessary to discuss the alleged promises in light
of the open door policy. The General
Counsel alleges repeated instances of various managers soliciting grievances or
making promises of benefits in an effort to destroy the employees’ support for
the Local Union. According to the
General Counsel, the Respondent has attempted to disguise these unlawful
efforts by continuous references to the open door policy. To the contrary, I am of the view that this
Employer has a longstanding and well-established past practice of encouraging
its employees to seek out its managers and supervisors whenever they have
questions, concerns, ideas, suggestions, and, yes, problems. That is the whole
idea behind the open door policy. This
is a nationwide program of long duration.
As noted above, the Respondent advises its employees of the policy in
numerous ways, including its employee handbook and computer-based “pipeline.” Also, descriptions of the policy are posted
throughout the Respondent’s stores, frequently with the pictures and telephone
numbers of its local, regional, and even corporate managers who are part of the
open door. That was also the case at the
Kingman facility, long before the organizational campaign commenced.
It
is well established that “[a]n employer who has had a past practice and policy
of soliciting employee grievances may continue to do so during an organizational
campaign.” Naomi Knitting Plant, 328 NLRB 1279 (1999), citing House
of Raeford Farms, 308 NLRB 568, 569 (1992).
Further, in the related area of objections to an election, the Board has
held that an employer does not engage in objectionable conduct by soliciting
and promising to remedy employee grievances during a union campaign if the
employer, both prior to the campaign and after, was willing to listen to its
employees’ complaints and respond to them.
MacDonald Machinery Co., 335 NLRB 319 (2001); see also Maple
Grove Health Care Center, 330 NLRB 775 (2000) (“Absent a previous practice
of doing so . . . the solicitation of grievances during an organizational
campaign accompanied by a promise, expressed or implied, to remedy the grievances
violates the Act.”).
I
disagree with the contention of counsel for the General Counsel and counsel for
the Unions that the Respondent’s use of the open door policy at the facility
was inconsistent with its past practice.
As I have stated, the policy was an integral part of the Respondent’s
corporate culture. Employees were continually
exposed to the policy at all of its stores nationwide, including at the Kingman
facility. Of course, during its election
campaign, the Respondent held frequent meetings with employees. These meetings were conducted by various
local, regional and corporate managers.
Clearly, their intention was to convince the employees not to support
the Local Union. As such, they argued
that “third-party representation” was not necessary because the open door
policy provided employees with a method of having their concerns directly
addressed by management. This was the
same message that the Respondent had previously used in explaining the alleged
benefits of the open door policy.
Nothing changed during the election campaign, except the frequency with
which the employees heard this message, and the number and title of the
messengers. The increased volume of “campaign
propaganda” was certainly to be expected, as the Respondent was engaged in an
election campaign. Also, it was not
surprising that the Respondent brought high-ranking officials, including its chief
executive officer, into the facility.
The Respondent wanted its message to have the greatest impact
possible. However, the message itself
had not changed from that given prior to the Local Union’s organizing
efforts. The Respondent’s reliance on
the open door policy at the Kingman facility was not inconsistent with its past
practice.
As
noted above, I have concluded that Mike Buckner did not promise TLE employees
on August 30 that he would remedy their grievances or improve their benefits
and terms and conditions of employment.
Further, I conclude that even assuming, for sake of argument, that
Buckner made any comments regarding employee problems, they were made in the
context of explaining the open door policy.
This was merely a continuation of the Respondent’s well established past
practice. Accordingly, I conclude there
is insufficient evidence to establish the allegations in paragraph 5(b) of the
complaint. Therefore, I shall recommend
dismissal of this paragraph of the complaint.
Paragraph
5(c) of the complaint alleges that on August 30, Buckner, at a storewide
meeting of employees, promised improved benefits and terms and conditions of
employment, as well as a remedy of employees’ grievances, if they refrained
from union organizational activity. This
complaint paragraph is identical to the prior paragraph, except the statements
were allegedly made to a group of employees who worked throughout the Kingman
facility, rather than only in the TLE.
All parties agree that following the filing of the petition, the Respondent
initially held campaign meetings for both TLE employees and for storewide
groups of employees. The Respondent took
the position at the representation hearing that the appropriate unit should be
a storewide unit, not one comprised only of TLE employees. According to the Respondent, until the issue
was decided, it thought it prudent to make its campaign presentation to all
potential voters throughout the store.
However, at some point following the Decision and Direction of Election,
the Respondent limited its campaign meetings to only those employees in the TLE
found by the Regional Director to be in the appropriate unit.
In
any event, on August 30, a second meeting was held for employees, similar to
the first, except that it was not limited to TLE employees. Former TLE employee Gregory Lewis, who
attended both meetings, testified that the second meeting was “scripted,” and
Buckner made “pretty much verbatim” the same comments as at the earlier
meeting. That was the only evidence offered
to support the complaint allegation. On
the other hand, Buckner, Dodson, and Williams all testified that Buckner read
the same talking points he had at the earlier TLE meeting. Further, they all testified that he made no
other substantive comments, and specifically did not promise the employees
improved benefits and terms and conditions of employment, and did not promise
to remedy employees’ grievances. The
three managers were essentially supported by the testimony of employees Dottie
Yarnell, Dorothy Haddock, Sherri Quinn, and Sharon Ford.
For
the reasons stated above, I continue to find Vicky Dodson to be a credible witness,
and accept her version of the comments made by Buckner at the second meeting
held on August 30. Further, the
collective testimony of the witnesses weighs heavily in favor of the conclusion
that Buckner did not promise employees improved benefits and terms and conditions
of employment, or to remedy their grievances, and I so find.
Also,
as I indicated above, even assuming, for argument sake, that Buckner made
certain comments regarding employee problems, they were made in the context of
explaining the open door policy. This
was merely a continuation of the Respondent’s well-established past
practice. Such a restatement of the
Respondent’s preexisting open door policy would be lawful under existing Board
law. Naomi Knitting Plant, supra; House of Raeford Farms, supra. Accordingly, I conclude the
General Counsel has failed to meet his burden to establish the allegations in
paragraph 5(c) of the complaint.
Therefore, I shall recommend dismissal of this paragraph of the
complaint.
It
is alleged in paragraph 5(d) of the complaint that on August 30, Vicki Dodson
solicited employee grievances and promised employees increased benefits and
improved terms and conditions of employment if they refrained from supporting
union organizational activity. Dodson
spoke at both the TLE meeting and the storewide meeting held on the morning of
August 30. Store manager Buckner
introduced her to employees at both meetings.
TLE employee Jones testified that during the TLE meeting, Dodson said
that she had come to the facility to talk and listen to the employees and, “to
do whatever it takes to make things right.”
According to Jones, she stressed that the representation petition was a “serious
business” and that the Employer stood behind the open door policy. Further, Jones contends that Dodson said that
some employees had tried to use the policy in the past and that Wal-Mart had
let them down, and that the Employer “had dropped the ball.” Allegedly, she assured the employees that the
Dodson
testified that she said essentially the same thing to assembled employees at
both the TLE and storewide meetings held on August 30. She told them that she was at the facility to
train the managers about union organizational campaigns, and to ensure that
they did not violate the law. Further,
she would be educating the employees about unions and would be answering
employee questions about unions and the campaign. She indicated that she would do anything she
could to answer their questions. She
talked about the open door policy.
Dodson specifically denied telling employees that she would “make things
right” or that she would “take care of, or straighten out problems.” She did not tell employees that she was at
the facility to “fix things” or any words to that effect. Dodson’s testimony was essentially supported
by the testimony of employees Dottie Yarnell, Dorothy Haddock, Sherri Quinn,
and Sharron Ford. Also supporting Dodson’s
testimony were Store Manager Buckner and Labor Manager Williams. Williams, who only attended the storewide
meeting on August 30, testified that Dodson spoke about why “ third-party
representation “ was not necessary and about the open door policy. According to Williams, Dodson admitted that
the Employer had made some mistakes, and that the open door had not always
worked as designed. She also acknowledged
that the leadership in the TLE had not been the best. However, he denied that Dodson made any
statement about solving employee problems.
For
the reasons stated above, I continue to believe that Vickie Dodson was a
credible witness. Further, she impressed
me as an intelligent, articulate, sophisticated individual who was a
well-trained labor relations manager.
She and her team were at the facility to run the Respondent’s election
campaign, and I simply do not believe that she would likely have committed
obvious unfair labor practices. Her
version of the events in question is inherently more plausible than the version
of events as testified to by the witnesses called by the General Counsel. Also, the weight of the witness testimony
supports the position taken by Dodson. I
believe it highly implausible that someone with Dodson’s knowledge of labor
relations would have told an assembled group of employees that she could solve
their problems, or that they should bring their problems to her for resolution,
or words to that effect. I think it much
more likely that certain of the TLE employees simply misconstrued her statements
and confused her comments about the open door policy, or her comment that she
would obtain answers to their questions, with a promise to solve problems or
improve benefits.
I
am further of the view that any comments made by Dodson about the operation of
the open door policy were consistent with the Respondent’s well established and
disseminated past practice, and, thus, lawful under existing Board law. (See the legal authority cited above.)
Accordingly,
I conclude the General Counsel has failed to establish the allegations found in
paragraph 5(d) of the complaint.
Therefore, I shall recommend dismissal of this paragraph of the
complaint.
Paragraph
5(f) of the complaint alleges that during the period from August 28 to
October 24, Timothy Scott solicited employee grievances and complaints and
promised employees increased benefits and improved terms and conditions of employment
if they refrained from union organizational activity. As noted earlier, Scott was at the time a
regional personnel manager who arrived at the facility on about August 30 as
one of the members of the Respondent’s
In
any event, the only evidence offered by counsel for the General Counsel in
support of this complaint allegation involved exclusively the period Scott
worked in the TLE, which was approximately 9 days, beginning on August 30. Both
In
a later section of this decision, I will address the issue of whether Scott’s
presence in the TLE for 9 days constituted surveillance of employees’ union
activity. However, it is clear to me
that while at the TLE Scott performed a significant amount of service work and
functioned as the acting TLE manager. In
that capacity it would not be unusual for him to have asked TLE employees how
they were doing, whether he could help them, or if they had any problems. These appear to me to be work-related
questions regarding matters that the TLE manager should, of course, be concerned
about. I do not believe that they constituted
a solicitation of grievances.
Asking
questions of TLE employees dealing with the daily operation of the shop was
precisely what a manager should do.
Further, the questions attributed to Scott were at best innocuous and
ambiguous, appearing to be nothing more than a general inquiry about the operation
of the TLE. The Board has held that
vague statements that do not promise that anything in particular will happen do
not rise to the level of illegal promises of benefits. National Micronetics, Inc., 277 NLRB
993 (1985); citing Allied/Egry Business Systems, 169 NLRB 514, 517
(1968) (Asking the employees to give the plant manager a chance to prove they
did not need an outsider to speak for them was merely a vague suggestion, which
did not support a finding that the employer made an unlawful promise.). Accordingly, I conclude that the General
Counsel has failed to meet his burden of proof regarding the allegations found
in paragraph 5(f) of the complaint. Therefore,
I shall recommend that this paragraph of the complaint be dismissed.
In paragraph 5(g) of the complaint, the General Counsel alleges that between August 28 and October 24, Dodson, Scott, and Williams solicited employee grievances and promised employees increased benefits and improved terms and conditions o